DILBAG SINGH AND ANOTHER v. SUBHASH CHAND AND OTHERS
CMPMO/434/2026 · 2026-09-09
Virender Singh
body2026
DailyLaw.ai
[ 2026 DAILYLAW 22613 (HP) · dailylaw.ai ]
DailyLaw.ai
[ 2026 DAILYLAW 22613 (HP) · dailylaw.ai ]
Judgment text
Extracted from the PDF above. The PDF is authoritative.
2026:HHC:38860 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.
: 434 of 2026 Decided on
: 09.09.2026 Dilbag Singh & Another …Petitioners Versus Subhash Chand & Others …Respondents Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the petitioners : Mr. Gurinder Singh Parmar, Advocate. For the respondents : Mr. Mukul Sood, Advocate. Virender Singh, Judge (Oral) Petitioners have filed the present petition, under Article 227 of the Constitution of India, against the order dated 31.03.2026, passed by the Court of learned Additional District Judge, Amb, District Una, H.P. (hereinafter referred to as the ‘First Appellate Court’), in Civil Miscellaneous Appeal No. 9/2026, titled as ‘Dilbag Singh & Others versus Subhash Chand & Another’.
2. By way of order dated 31.03.2026, the learned First Appellate Court has dismissed the appeal preferred by petitioners and proforma respondent No.3. The said 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
2 2026:HHC:38860 appeal was preferred by them against the order dated 07.01.2026, passed by the Court of learned Senior Civil Judge, Court No.1, Amb, District Una (hereinafter referred to as ‘the trial Court’), in CMA No. 688VI2025, titled as ‘Subhash Chand & Another versus Dilbag Singh & Others’.
3. By way of order dated 07.01.2026, the learned trial Court has allowed the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’) and directed the parties to maintain status quo, qua the nature and possession of the suit land till the final disposal of the main suit or till lawful partition of the suit land.
4. Parties to the present lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.
5.
Brief facts, leading to the filing of the present petition, before this Court, as borne out from the documents, annexed with the petition, as well as, placed on record, by the plaintiffs, by way of application bearing CMP No.23506 of 2026, may be summed up, as under:
3 2026:HHC:38860
5.1. Plaintiffs have filed the suit for issuance of permanent injunction restraining the defendants along with their agents from taking forcible exclusive possession by ousting the plaintiffs from joint possession, raising any sort of construction more than share in arbitrary choice, cutting and removing the trees, changing the nature whatsoever themselves or through their employees without the permission/sanction of the site plan as per requirement under NAC/TCP over the land measuring 621 00 Sq. Decimeters comprised of Khewat No. 561, Khatoni No. 676, Khasra Nos. 1243, 1247, 1248, 1257, 1258, 1259, 1260, 1261, 1262,1263 kita10 as per Nakal Jamabandi for the year 20192020 situated in Revenue Village/ Upmohal Bari, Tehsil Ghanari, District Una, H.P., (hereinafter referred to as the suit land’) till final partition, under Sections 34 to 38 of the Specific Relief Act. 5.2. The suit has been filed, on the ground, that the suit land is jointly owned and possessed by the plaintiffs and defendants No.1 and 2 and defendant No.3 is son of defendant No.1 and is utter stranger having no right, title and interest over the suit land. The suit land is not legally
4 2026:HHC:38860 partitioned, as such, none of the cosharers, has any right to change the nature, raise the construction, take the forcible exclusive possession of the suit land. 6. On the basis of the above facts, a prayer has been made to decree the suit,
7. Along with the plaint, application, under Order 39 Rules 1 and 2 CPC has been filed to grant the relief, as claimed in the application. 8. When put to notice, the suit, as well as, the application under Order 39 Rules 1 and 2 CPC, has been contested by the defendants. 9.
Defendants No.1 and 3 have filed their joint written statement, by taking the preliminary objections that the suit is not maintainable; the plaintiffs have no cause of action to file the present suit; the suit is bad for misjoinder and nonjoinder of necessary parties, as all co sharers of the joint land have not been impleaded, as party; the plaintiffs have suppressed material facts and the plaintiffs, themselves have constructed extensively on the joint land without partition. 5 2026:HHC:38860
10. On merits, other contents have been denied on the ground that although, the land is joint in revenue record, but the parties have been in separate and exclusive possession of their respective portions for decades. Defendant No.3, is not stranger, as, he is son of defendant No.1 and has a birth right in the joint property. The suit has further been contested on the ground that almost all the cosharers, including the plaintiffs, themselves have raised their extensive abadies over the joint land without partition. Plaintiff No.1 constructed a Pucca house, measuring approximately 2000 square feet, on the most valuable roadside portion. Defendants No.1 and 3 are reconstructing the Abadi by demolishing the old Abadi. 11. On the similar lines, defendant No.2 has also contested the suit, as well as, the application. 12. Learned trial Court, after hearing learned counsel appearing for the parties, has directed the parties to maintain status quo, qua the nature and possession of the suit land. The said order has unsuccessfully been assailed by the defendants before the learned First Appellate Court. 6 2026:HHC:38860
13. Now, the defendants have assailed the said
order, before this Court, under Article 227 of the Constitution of India, on the ground that both the Courts below have not considered the fact that old Abadi is in exclusive possession of the defendants, which was Kachi Abadi made from mud, was collapsed long back and now, constructed house under the Scheme Pradhan Mantri Awaas Yojna. 14. According to the petitionersdefendants, both the Courts below have also failed to consider the fact that the plaintiffs themselves have raised construction over the joint land and have constructed big house, including concrete courtyard. 15. On the basis of the above facts, Mr. Gurinder Singh Parmar, Advocate, appearing for defendants, has prayed that the present petition may kindly be allowed, by setting aside the order, passed by the learned trial Court and the application, under Order 39 Rules 1 and 2 CPC, may kindly be dismissed. 16. Per contra, Mr. Mukul Sood, Advocate appearing for the plaintiffs, has supported the judgment by
7 2026:HHC:38860 arguing that the learned trial Court has rightly appreciated the stand taken by the parties in their pleadings and the said order does not require any interference by this Court, that too, in a petition, under Article 227 of the Constitution of India, unless and until, the order passed by the learned trial Court suffers from perversity and the learned trial Court has wrongly exercised the jurisdiction vested in it and in the present case, the jurisdiction vested in the Court has been exercised properly. Hence, a prayer has been made to dismiss the petition. 17. Admittedly, the parties to the lis are co sharers. In the prayer clause, the relief has been sought to restrain the defendants from taking forcible exclusive possession by ousting the plaintiffs from joint possession, raising any sort of construction, more than their share, in arbitrary choice, cutting and removing the trees, changing the nature whatsoever themselves or through their employees, without permission/sanction of the site plan, as per requirement, under NAC/TCP over the suit land. 18. Admittedly, none of the parties has made any efforts to get the suit land partitioned by moving
8 2026:HHC:38860 application for partition before the appropriate forum/ competent Court. Meaning thereby, if the relief, as claimed in the application, is granted to the plaintiffs, the same would amount to ouster of the defendants from the suit land.
The cosharer cannot claim injunction against the cosharers, which amount to ouster. 19. Situation would have been otherwise, had the plaintiff filed/initiated the partition proceedings and thereafter, sought the relief of injunction, restraining the respondent from raising construction, till the suit land is partitioned by metes and bounds. 20. Moreover, the defendants cannot be vexed twice; firstly in the suit and secondly in the partition proceedings. The relief of injunction is equitable relief. The person, who is seeking equity must do equity and as per the stand taken by the respondent, plaintiffs themselves have raised construction and as such, they cannot sought injunction against the cosharers from raising construction over the suit land. 21. The defendants have specifically taken the plea, in the written statement, that plaintiff No.1, has
9 2026:HHC:38860 constructed Pucca house, approximately 2000 square feet, situated, on the roadside portion. 22. In the rejoinder, although, this plea has been denied, but, considering the fact that no efforts have been made by the plaintiffs to get the suit land partitioned, the learned trial Court has fallen into error, while directing the parties to maintain status quo. 23. Moreover, the learned trial Court has exceeded its jurisdiction by allowing the application under Order 39 Rules 1 and 2 CPC, merely, on the ground that the suit land is joint, however, the learned trial Court has failed to consider the fact that the cosharers cannot be injuncted from raising construction, unless or until, findings are recorded that the defendants are going to raise construction over the land more than their share. 24. Even otherwise, if the construction is raised in excess of their share, the same would be subject to the final outcome of the suit. As such, this Court is of the view that the findings recorded by the learned trial Court are suffering from perversity and the learned trial Court has exceeded its jurisdiction, while deciding the application,
10 2026:HHC:38860 without considering the acts and conduct of the plaintiffs, in not moving the application, for partition of the suit land. 25.
Accordingly, the present petition is allowed and the order dated 07.01.2026, passed by the learned trial Court, as upheld by the learned First Appellate Court, is set aside. Consequently, the application, under Order 39 Rules 1 and 2 CPC, is dismissed. 26. Pending miscellaneous application(s), if any, shall also stand disposed of. 27. Parties, through the learned counsel, are
directed to appear before the learned trial Court on 28th September, 2026, at 10.00 a.m.
28. Any of the observations made herein above shall not be taken as an expression of opinion on the merits of the case, as these observations are confined only to the disposal of the present petition.
( Virender Singh ) September 09, 2026( ps ) Judge